Kuswardana v Minister for Immigration and Ethnic Affairs

[1981] FCA 64

Re: STEVAN KUSWARDANA
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1981) 54 FLR 335
No. NSW G113 of 1980
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Deane(3) JJ.

CATCHWORDS

Immigration - deportation - whether the immigrant status of the proposed deportee need be decided. Appeal - Administrative Appeals Tribunal - immigrant status of proposed deportee assumed before Tribunal - whether an error of law by Tribunal in not deciding the question.

Migration Act 1958, s.13, sub-s.14(2).

Administrative Appeals Tribunal Act 1975, ss.43, 44.

Immigration and Aliens - Deportation - Appeal from deportation order of Minister to Administrative Appeals Tribunal - Whether immigrant status of proposed deportee need be decided - Whether not deciding status error of law - Migration Act 1958 (Cth), s. 13 - Administrative Appeals Tribunal Act 1975 (Cth), ss. 43, 44.

HEADNOTE

The respondent Minister for Immigration had decided under s. 13 of the Migration Act 1958 that the applicant was to be deported from Australia. The applicant appealed to the Administrative Appeals Tribunal, which affirmed the decision. The applicant then appealed to the Federal Court on a question of law, namely whether the Administrative Appeals Tribunal should have determined as an initial question whether the applicant was an immigrant for the purposes of s. 13. The Tribunal had not determined that question.

Held, decision set aside, that in its review of the Minister's exercise of discretion under s. 13 the Administrative Appeals Tribunal should have decided the initial question of whether the applicant was an "immigrant". R. v. Macfarlane; Ex parte O'Flanagan (1923), 32 CLR 518; Ang v. Minister for Immigration and Ethnic Affairs (1980), 40 FLR 410, referred to.

An error of law had therefore arisen, the Tribunal's decision should be set aside, and the matter referred back to the Tribunal.

HEARING

Sydney, 1981, February 25-26; March 30; June 1. #DATE 1:6:1981

APPEAL.

Appeal from a decision of the Administrative Appeals Tribunal (Gallop J.) on a question of law.

The facts appear from the judgment.

F. S. McAlary Q.C. and J. L. Ryan, for the applicant.

R. J. Marr Q.C. and J. R. Sackar, for the respondent.

M. H. Byers Q.C. (Solicitor-General) and J. R. Sackar, for the Commonwealth.

M. Johnston (solicitor), for the State of New South Wales.

Cur. adv. vult.

Solicitors for the appellant: Heaney Richardson & Heaney.

Solicitor for the respondent and for the Commonwealth B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitor for the State of New South Wales: H. K. Roberts, State Crown Solicitor.

J. H. TELFER

ORDER

1. THE decision of the Administrative Appeals Tribunal of 21 October, 1980 affirming the order of the Minister for Immigration and Ethnic Affairs to deport Stevan Kuswardana be set aside.

2. THE matter be remitted to the Administrative Appeals Tribunal to be heard and decided again.

3. THE respondent pay the applicant's costs.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Minister of State for Immigration and Ethnic Affairs ("the Minister") made on 4 June 1980 under s.13 of the Migration Act 1958 ("the Act") that the applicant, Stevan Kuswardana, be deported from Australia. In accordance with the provisions of sub-clause (4) of clause 22 of Part XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 (the "Administrative Appeals Act") the Tribunal was constituted by a Deputy President. The "appeal" to this Court is pursuant to s.44 of the Administrative Appeals Act and is limited to a question of law. The proceedings are strictly within the original jurisdiction of the Court. However, for convenience the nomenclature of the Act will be used.

The personal history and circumstances of the applicant were set out by the Tribunal in its reasons and were not the subject of argument before this Court.

The applicant was born in Indonesia on 21 May 1949. He first arrived in Australia as a visitor on 2 May 1974 for a stay of three months. A further stay was authorised until 2 November 1974. Upon expiry of this extended authorised stay the applicant became a prohibited immigrant and liable to deportation under s.18 of the Act. No deportation order was signed at that stage because of a proposed amnesty for prohibited immigrants. On 9 February 1976 the applicant applied for "permanent residence" under the amnesty. On 11 February 1976 he was given a temporary entry permit, under s.6 of the Act, pending consideration of his application. On 17 March 1976 the applicant was granted "permanent residence" in Australia. This is the terminology used in the Acting Minister's statement of material questions of fact issued pursuant to s.37 of the Administrative Appeals Act. The phrase is not defined in the Act. It would appear that permission was given under sub-s.6(3) of the Act for the applicant to remain in Australia permanently. This permission was signified by the granting of a further entry permit to remain and the impressing upon the Department's amnesty processing sheet relating to the applicant a stamp indicating permission to remain in Australia. Apart from a brief visit to Indonesia in July 1977 the applicant has lived in Australia since his first arrival.

After arriving in Australia on 2 May 1974 the applicant was employed for approximately three years by various persons and companies, apparently as a waiter. He then went into partnership with a Mr. L. Mumford to run a delicatessen/ butcher shop in Waverley, Sydney. Through his endeavours he was able to accumulate some modest personal savings. There was also evidence before the Tribunal that the applicant had contributed towards the purchase of a home unit with Mr. Mumford in Randwick, Sydney.

On 4 October 1979 the applicant was convicted of indecent assault upon a seven year old boy on 1 September 1978. He was sentenced in the New South Wales District Court to 18 months imprisonment with a non-parole period specified as 9 months. He was released from detention on parole on 18 July 1980. Shortly before this, on 4 June 1980, the Minister signed a deportation order under s.13 of the Act.

Section 13 of the Act is in the following terms:
"13. Subject to section fifteen of this Act, where (whether before or after the commencement of this Part) an immigrant -

(a) has been convicted in Australia of an offence punishable by death or by imprisonment for one year or longer, being an offence committed within five years after any entry by him into Australia;

(b) has been convicted in Australia of an offence by reason of being a prostitute or of having lived on, or received any part of, the earnings of prostitution or of having procured persons for the purposes of prostitution, being an offence committed within five years after any entry by the immigrant into Australia; or

(c) is, within five years after any entry by him into Australia, an inmate of a mental hospital or public charitable institution,

the Minister may order the deportation of the immigrant from Australia."

The applicant had been convicted of an offence punishable by imprisonment for one year or longer, being an offence committed within the five year period in para.13(a). Before the Tribunal his case was argued on its merits and many issues were raised. However, there was apparently no disagreement that the applicant wa an immigrant. It could be termed "common ground".

In the Notice of Appeal filed on behalf of the applicant twelve grounds of appeal were stated. None of these related to the question of the exercise of the Minister's power under s.13. On the hearing before this Court, however, the applicant's Counsel argued the appeal on one ground only: that the Tribunal was in error in not determining an initial question essential to the application of s.13 of the Act under which the Minister purported to act. That initial question was whether the applicant was an "immigrant". This, it was argued, was an error of law notwithstanding that the applicant's submissions before the Tribunal were implicitly based upon the formal correctness of the application of s.13 and the assumption that the applicant was an immigrant. It was argued that this was a question going to the jurisdiction of the Tribunal, which the Tribunal was obliged to notice and to determine.

No application was made to amend the notice of appeal. However, without objection from Counsel for the Minister, argument proceeded on the question raised as to the proper construction of s.13 and its constitutional basis in s.51 pl.(xxvii) of the Constitution. The Court came to the view that there arose from the argument a matter involving the interpretation of the Constitution and directed that notice be given to the Commonwealth Attorney-General and the New South Wales Attorney-General in accordance with s.78B of the Judiciary Act 1903.

Such notices were given and on a later occasion argument was heard on the proper construction of s.13 and the ambit of the Commonwealth's power under s.51 pl.(xxvii) of the Constitution between Counsel for the applicant and the Solicitor-General appearing for the Commonwealth Attorney-General and for the Minister (the "Crown"). The New South Wales Attorney-General did not desire to be heard.

It was common ground that the Commonwealth's power under s.51 pl.(xxvii) extended to control entry and absorption into the community and that Parliament had power to impose a statutory condition of entry upon immigrants. (See O'Keefe v. Calwell (1949) 77 C.L.R. 261 at pp.276-277 and Koon Wing Lau v. Calwell (1949) 80 C.L.R. 533 at p.560; R. v. Forbes; Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168; R. v. Director General of Social Welfare (Vic.); Ex parte Henry (1975) 133 C.L.R. 369.)

Counsel for the applicant submitted that s.13 deals with a recognised category of person, the "immigrant", under a recognised head of constitutional power, "immigration and emigration" (s.51 pl.(xxvii)). Paragraph 13(a) of the Act under which the order to deport the applicant was made, simply speaks of immigrants: immigrants committing certain offences, being convicted of them and being deported. It applies to persons who satisfy that essential precondition. So, if a person has ceased to be an immigrant by "absorption" into the Australian community, the section simply does not apply to him or to her.

Counsel for the applicant further submitted that since no condition had been imposed upon the grant to him of "permanent residence", the Tribunal should have considered and decided whether the applicant had become part of the Australian community or was still an immigrant. In not doing so the Tribunal was in error by failing to consider a relevant, indeed essential, consideration or precondition to the application of the section and was, in effect, misdirecting itself as to its proper task. This was an error of the Tribunal despite the nature of the arguments put to the Tribunal by the applicant's Counsel which were based upon the otherwise valid exercise of Ministerial power under s.13. The phrase "question of law" in sub-s.44(1) of the Administrative Appeals Act should be given a wide meaning to encompass any failure to apply relevant considerations or to understand the nature of the task.

Counsel for the Crown submitted that s.13 on its proper construction made it unnecessary for the Tribunal to decide whether the applicant was an immigrant. Section 13 has the effect of enacting a five year "probation" period for all immigrants, during which time they remain immigrants by force of the section. A condition is attached by the law to all immigrants upon entry and that condition subsists irrespective of otherwise apparently unconditional permission to remain as a permanent resident. If within five years of entry an immigrant commits any offence within paras. 13(a) or (b) or falls within (c) he retains his immigrant status indefinitely and cannot be absorbed into the community and, if he is convicted of any offence within (a) or (b) at any time, he may be deported. Thus, integration or absorption into the community is delayed by force of the section for at least five years and possibly indefinitely. Therefore, there was no error of law by the Tribunal in not expressly deciding the applicant's status since the offence which satisfied the criteria in para.13(a) of the Act was committed within five years of the applicant's relevant entry.

Alternatively, it was put by Counsel for the Crown that the Tribunal by setting out in its reasons the personal history of the applicant and reciting the terms of s.13 implicitly revealed that it considered and decided the immigrant status of the applicant. Counsel for the Crown did not argue the question whether, if the issue of immigrant status was an issue to be decided by the Tribunal and if there had not been proper consideration of it, there was an error of law involved in the Tribunal's proceeding upon the assumption common to both parties before it that the applicant was an immigrant.

Counsel for the Crown argued that on the proper interpretation of s.13 the section was intra vires as merely attaching a condition to entry. Counsel for the applicant did not dispute that Parliament had power to attach conditions to entry by legislation (although the precise nature of such conditions and the length of time they could apply was a matter of some dispute in argument) to delay "absorption" but he argued that s.13 does not purport to do this. Counsel for the applicant argued that in the scheme of the Act the position of the prohibited immigrant is to be contrasted with the position of the legal immigrant. Prohibited immigrants, it was pointed out, have an express disability attached to them by force of s.7 which denies them the capacity to integrate into the community for at least five years: sub-s.7(4). See R. v. Forbes; Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168. Legal immigrants on the other hand who have no conditions attached to their entry permits under s.6, are able to be absorbed into the community and s.13 applies to them only so long as they remain immigrants and in that way s.13 is constitutionally valid.

If the construction advanced by Counsel for the Crown is correct, then there was no error of law involved in the omission by the Tribunal to examine the status of the applicant; that status would have been settled by the terms of s.13 and the proof of the conviction for an offence satisfying para.13(a) committed within five years of entry.

How should s.13 be interpreted? In arriving at the legislative intention in s.13 some guidance is obtained from the examination by the High Court of s.8A of the Immigration Act 1901 in R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 C.L.R. 518 and the comments on that section in Ex parte Walsh and Johnson; In re Yates (1925) 37 C.L.R. 36.

Sub-section 8A(1) was the forerunner of s.13 and sub-s.14(2), in similar form to those provisions though the words "person" and "person not born in Australia" were used instead of the word "immigrant". This provision was found to be within the immigration power in R. v. Macfarlane, supra, as it was read down as applying only to immigrants. Some support for an interpretation of s.13 which would give it a conditional or "probationary" operation may be found in R. v. Macfarlane, supra, in the judgments of Knox C.J. (at p.533) and Isaacs J. (at p.555) with whom Rich J. agreed (at p.578). However, it is to be noted that Isaacs J. there took the view "Once an immigrant always an immigrant", which has been rejected in later decisions. Moreover, Starke J. does not allude to any "probationary" interpretation of s.8A but rather (at p.583) simply interprets the section as "hitting" immigrants, that is, people who have not yet become members of the Australian community.

Two years later s.8AA of the same Act was the subject of litigation in Ex parte Walsh and Johnson; In re Yates, supra. The judgment of Knox C.J. elaborates upon and seems to differ from his views in R. v. Macfarlane, supra, in regard to s.8A. He agrees with the views of Starke J. in the earlier case and (at p.62) refers to s.8A having been held to be a valid exercise of the power to make laws with respect to immigration because its operation is limited to persons coming into or already in Australia who have not become members of the Australian community. If the operation of the section i.e. deportation, does not extend to persons already in Australia who have become part of the community (but who otherwise fall within the terms of the section) it is difficult to see how the section can have the effect of freezing an immigrant's status for the time mentioned in the section.

Section 13 occurs in "Division 2 - Deportation", with other sections dealing with deportation. Section 12 confers power on the Minister to deport aliens, as defined in sub-s.5(1), who are convicted of certain crimes. The only time limit imposed is that the Minister may exercise the power "upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime". This could refer to a time long after the alien had become absorbed in the Australian community. Sub-section 14(1) dealing with aliens is likewise free of any significant time limit. No doubt s.12 and sub-s.14(1) are based on the power conferred by s.51 pl.(xix) as well as s.51 pl.(xxvii) of the Constitution.

Sub-section 14(2), like s.13, confers power to deport immigrants in certain circumstances. However, it differs from s.13 in three respects, which are worth noting. First, the power cannot be exercised unless the procedures laid down in sub-ss.14(3)-(8) inclusive are followed. These appear to be designed to secure natural justice for the proposed deportee. Secondly, sub-s.14(2) fastens upon "an immigrant who has entered Australia . . . not more than five years previously". If certain conduct is engaged in the Minister may deport "that immigrant". There is at least a reference to the status of an immigrant at the time of entry; though the section does not exclude the necessity for that status to exist at the time of making the order for deportation. Thirdly, the power conferred by sub-s.14(2) is exercisable only within the period of five years after the date of entry.

The three features of sub-s.14(2) would, perhaps, make it more amenable than s.13 to being construed as providing a "probationary" period during which an immigrant could not lose his immigrant status. If so, the period would be limited to the five years after entry. It would, presumably, inure for any purpose under the Act, including determination of status for s.13.

Any possible five year probationary period from sub-s.14(2) would not be decisive in the present case, however, since the conviction and deportation order occurred after the expiry of the five year period. It is unnecessary, therefore, to express a concluded view on the interpretation of sub-s.14(2). Even if there were a five year probationary period imposed by sub-s.14(2), once that period expired, all the circumstances of a proposed deportee would have to be considered in determining his status, including events which occurred within that period (cf. R. v. Forbes; Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168 at pp.173-174).

Turning to s.13, it is necessary to see whether this creates any continuing probationary situation. In terms, s.13 looks to the situation of "an immigrant" who satisfies any of the criteria set forth in paras.13(a), (b) or (c). The Minister may deport "the immigrant" who does so. The five year period mentioned in s.13 is not expressed to attach to immigrants at their point of entry, rather it is directed to satisfaction of the criteria in paras.13(a)-(c). Under para.13(a) a conviction may not take place until many years afterwards, if ever, when an offence of the type mentioned has been committed within five years. Does s.13 disclose an intention to keep the immigrant on probation and unable to be assimilated pending the resolution of these matters? Section 13 is not inconsistent with an assumption of such a probationary effect, but it is not couched in terms of a condition. Furthermore, such an interpretation would raise the question of constitutional validity. The simple answer is that s.13 plainly confers a power to deport a person, who fulfils any of the criteria specified in the section and who answers the description of "immigrant" at the time of the exercise of the power to order deportation. (See Macfarlane's Case, supra, at p.583; Ex parte Walsh and Johnson, supra, at p.62; and Ex parte Henry (1975) 133 C.L.R. 369 at p.372). This is the interpretation which commends itself to me.

On this view an initial question to be considered by the Tribunal in its review of the Minister's decision must be the immigrant status of the proposed deportee. (See for example Ang v. Minister for Immigration and Ethnic Affairs (1980) 40 F.L.R. 410). As I have said it is one of the essential statutory preconditions for the application of the section. Where the power to deport under s.13 is sought to be exercised within five years after the entry of the proposed deportee as an immigrant, the question whether he can be absorbed into the Australian community during this initial five year period may need to be determined, in particular having regard to the possible probationary effect of sub-s.14(2). Where, as here, the power to deport is sought to be exercised after the expiry of the five year period, it will generally be necessary to consider whether the proposed deportee has become part of the Australian community. As to the relevant factors to be examined in resolving this question of fact the Minister or the Tribunal should look to the sort of factors which indicate not only a desire on the part of that person to become part of the Australian community but also a community willingness to accept him (See generally P.H. Lane The Australian Federal System, 2nd Ed., pp.218-220).

In this case, it may be thought that the material before the Tribunal relating to the history and circumstances of the applicant should have been sufficient in themselves to raise in both the Counsel for the applicant and in the Tribunal a desire to canvass the issue of immigrant or other status. However, Counsel assumed immigrant status as did the Tribunal. The mere reciting of the applicant's history and of the terms of s.13 by the Tribunal in its reasons are not sufficient to reveal a consideration of the issue of whether the applicant was an immigrant.

There is ample authority for the general proposition that an error of law arises where a Tribunal not exercising judicial power fails to consider a relevant factor in arriving at a decision or misapprehends the matters of which it has to be satisfied in reaching a decision. In this case not only is the consideration of immigrant status relevant but it is fundamental to the application and operation of the section. It is clear that the failure of the Tribunal to consider and decide whether the applicant was an immigrant was an understandable result of the approach of the applicant's Counsel - the thrust of the latter's attack was to the merits of the decision of the Minister not its "jurisdictional" basis.

Does one therefore say that the Tribunal made no error because of the approach of Counsel? Alternatively, is the position that the failure to consider the question was an error but because of the conduct of the case before the Tribunal the consequences of that error may not be that the decision of the Tribunal is set aside or the case remitted? If the former is the position the applicant has not made out a question of law for the purposes of sub-s.44(1) of the Act. Whereas if the latter is the position he has made out the question of law but may be denied any consequential relief.

Some assistance may be obtained in the resolution of this difficulty from the numerous cases dealing with, in general terms, matters not argued below and appellate courts in the strict sense (see for example Sydney Harbour Trust Commissioners v. Wailes (1908) 5 C.L.R. 879; Davison v. Vickery's Motors Limited (in Liquidation) (1925) 37 C.L.R. 1; Suttor v. Gundowda Pty. Limited (1950) 81 C.L.R. 418; Burston v. Melbourne and Metropolitan Tramways Board (1948) 78 C.L.R. 143; Bloemen v. Commonwealth (1975) 49 A.L.J.R. 219; and Port Jackson Stevedoring Pty. Limited v. Salmond and Spraggon (Australia) Pty. Limited (1978) 139 C.L.R. 231). They are, in my opinion, useful in determining the approach which this Court should adopt in relation to appeals, so-called, from the Administrative Appeals Tribunal. The Tribunal is required to proceed with an absence of technicality and is not bound by the rules of evidence. It may be that because of the particular statutory provisions governing the Tribunal and the appeals from it to this Court, in some circumstances additional considerations will be involved. Nevertheless, in the present case the cases furnish a useful guide. In the words of Barwick C.J. in Port Jackson Stevedoring Pty. Ltd. v. Salmond and Spraggon Pty. Ltd., supra, at p.241:
"Suffice it to say it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial."
and Dixon J. (as he then was) in Burston v. Melbourne and Metropolitan Tramways Board (1948) 78 C.L.R. 143 at p.167 in a dissenting judgment said:
"But I perhaps should add that the question whether the failure of counsel to raise a contention at the trial precludes an application for a new trial is not in my opinion to be determined as an abstract proposition of law. The court's jurisdiction to order a new trial depends upon the demands of justice. Often it would be unjust to set aside a verdict for a reason which but for the default of the party moving, would never have existed. What is done and omitted at the trial is an important consideration to be weighed in determining a new trial application, but in the absence of a specific enactment or rule, it affects the exercise of discretion but does not amount always to a positive bar. There is not a rigid rule of law or practice."

In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned - found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error.

The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends in my view upon principles similar to those expressed by Dixon J. in Burston's Case, supra, and by the same Judge in Orr v. Holmes (1948) 76 C.L.R. 632 at p.640: "to fulfil an imperative demand of justice".

The consequences of not correcting the error of the Tribunal would be exceptionally serious to the applicant. He would face immediate deportation unless he is able to challenge the Minister's decision by some other means. That this risk should exist when, in my view, there has been an error of law in the review of the applicant's case by the Tribunal amounts to sufficient injustice to justify this Court in interfering notwithstanding the contribution of the conduct of the case for the applicant before the Tribunal in the making of the error by the Tribunal.

In my view the decision of the Tribunal of 21 October 1980 should be set aside and the case remitted to the Tribunal for rehearing. I am of opinion the respondent should pay to the appellant his costs of the appeal.

JUDGE2

This is an appeal against an order of a Presidential member of the Administrative Appeals Tribunal in which he affirmed a decision of the Minister of State for Immigration and Ethnic Affairs that the applicant (appellant) Stevan Kuswardana be deported from Australia. Appeal to this court lies only on a question of law.

The appellant arrived in Australia on 2 May 1974. He was granted a temporary entry permit allowing him to stay in Australia for three months. He was subsequently granted a further temporary permit, but because of a failure to avail himself of an opportunity to get in touch with the Department of Immigration and Ethnic Affairs, the period covered by the permit expired without a further one being granted. As a result, on 3 November 1974 the appellant became a prohibited immigrant. On 9 February 1976 the appellant applied for permanent residence under the amnesty programme and on 17 March 1976 he was granted permanent residence in Australia.

On 1 September 1978, that is to say within five years after entry by him into Australia as an immigrant, he committed an offence of indecently assaulting a male, for which he was convicted on 4 October 1979. The offence carried a maximum penalty of five years' imprisonment. The appellant was sentenced to 18 months' imprisonment to date from 3 October 1979 with a non-parole period of 9 months.

The deportation order was made by the Minister on 4 June 1980 (more than five years after entry) and on 30 June 1980 the appellant applied for a review of his decision by the Administrative Appeals Tribunal. The tribunal, constituted by a judge as a presidential member (see cl.22(4) and s.7 of the Administrative Appeals Tribunal Act 1975, as amended) affirmed the decision of the Minister on 21 October 1980.

Before this Court a single ground has been relied upon, namely that there was no examination by the tribunal of the question whether the appellant was or is an immigrant in respect of whom an order for deportation could be made. This was a critical question and it is submitted that it should have been investigated and was not.

On behalf of the respondent Minister the absence of any recorded investigation of the question is not denied. It is said that on admitted facts the Minister and the Tribunal could only have reached the conclusion that the appellant was an immigrant.

The matter turns upon the proper construction of s.13 of the Migration Act 1958-1973. This section is as follows:
"13. Subject to section fifteen of this Act, where (whether before or after the commencement of this Part) an immigrant -

(a) has been convicted in Australia of an offence punishable by death or by imprisonment for one year or longer, being an offence committed within five years after any entry by him into Australia;

(b) has been convicted in Australia of an offence by reason of being a prostitute or of having lived on, or received any part of, the earnings of prostitution or of having procured persons for the purposes of prostitution, being an offence committed within five years after any entry by the immigrant into Australia; or

(c) is, within five years after any entry by him into Australia, an inmate of a mental hospital or public charitable institution, the Minister may order the deportation of the immigrant from Australia."

On behalf of the appellant it is submitted that he was not within the meaning of the opening words of the section "an immigrant" or at least that it has not been shown, or found, that he was. It is submitted that under Australian law the term "immigrant" does not include a person who has been "absorbed into the community" or "integrated" with it. Reliance is placed on a number of authorities which were decided in connection with the constitutional power under placitum (xxvii) of s.51 to make laws with respect to "immigration and emigration": Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 64, 137; R v Carter; ex parte Kisch (1934) 52 CLR 221; O'Keefe v Calwell (1949) 77 CLR 261; Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Forbes; ex parte Kwok Kwan Lee (1971) 124 CLR 168; R v Director-General of Social Welfare; ex parte Henry and Anor (1975) 133 CLR 369. Reference is also made to the decision of Sholl J in R v Governor of Metropolitan Gaol; ex parte Molinari (1962 VR 156), in which some of these decisions, and others, were discussed.

For the respondent it is accepted that a person ceases to be an immigrant upon becoming "absorbed into the community" but reliance is placed on the proposition, also well established, that it is open to the Commonwealth to establish pre-conditions to assimilation, (see, for example, R v Director-General of Social Welfare; ex parte Henry & Anor (supra)). It is submitted that s. 13 is a provision having this effect and that a person who commits an offence to which s.13 relates within five years of entry thereafter is, or remains, "on probation" and if and when convicted will be liable to be deported.

There are two stages in this argument. One is that by implication from s.13, a person who has entered as an immigrant cannot be absorbed into the community for five years. That is because he (or she) may commit an offence in that period and thereafter become liable to deportation. The second is that, having committed an offence, the offender cannot be absorbed because he may be convicted, and as a consequence become liable to deportation. It is a fact that the statutory power to deport only applies to aliens and immigrants, and it may be assumed for the purposes of the argument that continuing liability to deportation prevents a person becoming part of the Australian community, in the relevant sense. The argument then becomes tautologous and it is necessary to look at the language used in the section. In terms, it only applies to "immigrants", and it is not cast in language appropriate to preventing assimilation by persons who, in the ordinary course, would cease to be immigrants. It is a section dealing with deportation, and deportation of immigrants.

In my view, the section should be given the effect to which its language naturally leads. It does not deal with inhibitions upon an immigrant becoming absorbed into the community. If and when he becomes assimilated, the erstwhile immigrant, according to the accepted construction of the term, ceases to be an immigrant. Section 13 has ample work to do in relation to persons who, not having become absorbed, remain immigrants. There is no need for, and no place for, the implication. This is not to deny that implications should be made where they are reasonably compelling; for example, a prohibited immigrant or a person holding an entry permit valid only for a term may not, while remaining in those categories, become assimilated.

That the commission of one of the offences referred to should have the suspensory effect claimed does not derive support in common sense or fairness, having in mind the relative triviality of many that would be comprehended in the descriptions used, and the uncertainty of prosecution.

The argument on behalf of the respondent Minister involves construing the words "an immigrant" as if there were added "or a person who has been an immigrant", or similar words (the difficulty of formulating appropriate words, consonant with the remainder of the section, is one of the difficulties of construction facing the respondent.) The argument is not strengthened by the fact that while the corresponding section (s.8A) of the repealed Immigration Act 1901-1949 referred to "a person not born in Australia", a change has been made, - and made at a time when the concept of transmutation from immigrant to member of the community was well established. The same phrase appeared in s.8AA, which dealt with industrial disturbances, and a majority of the court in Ex parte Walsh and Johnson; re Yates (supra) were of the view that it could not validly apply to persons who had ceased to be immigrants and had become members of the Australian community. The line then drawn has been maintained.

How then does s.13 apply in relation to the present appellant? What is the relevant date for determining whether he had or had not become absorbed into the Australian community? It seems to me that this cannot be earlier than the date of his conviction. If he was an immigrant at that time he would then, and not before, have become liable to deportation.

If the correct date is not earlier than the date of conviction, is it, to be more exact, the date of the deportation order? It is not likely that circumstances will have altered between the two dates, but if it were necessary I should select the later date. This is because the power s.13 gives is discretionary, and is a power to deport an "immigrant" to whom the section relates. It can be said, in accordance with the assumption I made earlier for the purposes of the argument then under consideration, that the disability of being liable to deportation, which accrues upon conviction, is a bar to acceptance as a member of the community after then. This may appear to make good sense, and represent a desirable policy, but it would have practical difficulties. The person affected would have to wait upon a ministerial decision in his favour before assimilation could re-commence (if that were his object) or, worse still, he might remain indefinitely in a state of suspense, with his status undetermined. Constitutional questions could then be raised. A similar indefiniteness of status is of course a result of the principal argument advanced on behalf of the Minister, and is said then to flow from an inchoate liability to be deported, arising on the commission of an offence. It seems to me that the safest course is to have resort to the language used and I believe that it leads to the view I have expressed.

In the course of argument, reference was made to s.14(2) of the Migration Act, which provides, in conjunction with following sub-secns, another power of deportation. If within five years after entry by an "immigrant" to Australia it appears to the Minister that his conduct has been such that he should not be allowed to remain in Australia, or, to put it shortly, that he is a revolutionary or anarchist, the Minister may, subject to the section, order the deportation of "that immigrant". The construction of the sub-secn does not directly arise in this case, but in my view it does not by implication cut across the view I have expressed about s.13. It can again be said that the immigrant is under probation for five years, and so he is, if and while he remains an immigrant. Like s.13, s.14(2) refers to an immigrant, and leaves untouched the question whether, at some stage, he has become assimilated.

The appellant's submission cannot therefore be met by an argument that the evidence, in the light of the statutory provisions, is conclusive to show that he had not become assimilated. On the contrary there is some evidence that he had: the fact that he had applied for and obtained permanent resident status, the period of his residence, or presence, in Australia, the fact that he owned real property here. A suggested list of the tests which might be applied is set out in Lane, The Australian Federal System, 2nd Edn., pp.218 et seq. A permit to remain obtains statutory recognition in s.6(3) of the Act (see R v Forbes; ex parte Kwok Kwan Lee (1971) 124 CLR 168, 173).

Section 44(1) of the Administrative Appeals Tribunal Act 1975 as amended provides that a party may appeal to this court on a question of law from a decision of the Tribunal. There is no doubt that the present appeal directly involved a question of law, and it is that question with which I have been dealing. There was debate early in the hearing before us as to whether there was such a question, but the reality was obscured by two matters. The way in which the ground was formulated (stated by me at the beginning of these reasons) involved an unexpressed premise that, notwithstanding the facts disclosed, the applicant to the Tribunal may not be an immigrant liable to deportation under s.13. This was the question argued before us. The other matter tending to obfuscation was that the argument had not been presented to the Tribunal; the point had not been taken before the learned Presidential Member. In his long and carefully prepared reasons he did not advert to the matter. There is not, however, any requirement that "the point be taken" before the Tribunal, and we should be cautious in trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting. This is not to say that an administrative tribunal may not, subject to the regulations governing it, find it convenient or helpful to follow in some respects procedures which over the span of many years have been found by courts of law to be most conducive to the interests of justice. They plainly must be able to accept concessions of fact, but so to express the matter is to confuse their function, which is one of administrative inquiry, without rules of evidence.

In the present case it appears that the Minister followed an established practice in treating a person as an immigrant liable to deportation, one who (inside or outside the five year period) had been convicted of an offence of the nature to which s.13 referred, if it was committed within five years after entry. This was done without considering whether, before or after the commission of the offence, or conviction, he had become assimilated. Presumably the view was that the person was "on probation" for some undefined or indefinite period.

The application for review, in para. 7, which deals with reasons for the application, made express reference to matters relevant to assimilation. Those matters were proved in evidence, but were related by all concerned to the question whether the applicant should be deported. Where there is material suggesting that the applicant has at, or before, the relevant time become a member of the Australian community it is in my opinion incumbent upon the Tribunal to investigate the matter and to form and record its decision. If the Presidential member constituting the Tribunal affirms the Minister's decision, he must, it seems to me, be satisfied of all the critical ingredients, and, in accordance with general principle, he should state his decision thereon, with reasons. If he remits the matter for reconsideration and there are legal grounds for not affirming the decision, the Minister should know of them. Section 43(2) of the Administrative Appeals Tribunal Act should be referred to in this context. That sub-section requires a Tribunal functioning under the Act to give reasons in writing for its decision, which are to include its findings on material questions of fact. The operation of the sub-section was considered by a Full Court of this Court in Sullivan v Department of Transport (1978) 1 ALD 383, where it was held that failure to take material facts into account and to examine them in relation to a matter the Tribunal had purported to determine amounted, in that case, to an error of law, and the appeal from the Tribunal was allowed.

I am therefore of the view that the appeal should be allowed. The matter should be remitted to the Tribunal for rehearing.

On the question of costs there is the consideration that the ground relied upon was only raised on this appeal. On the other hand, an adjournment was allowed to the respondent and he continued his opposition. When it appeared that a constitutional question had been raised in argument, notice, as prescribed by s.78B of the Judiciary Act 1903, as amended, was given to the Attorney-General for the Commonwealth, as well as the Attorney-General for New South Wales. The Solicitor-General for the Commonwealth argued for the respondent both the construction and the constitutional aspects of s.13. On the whole, I am of the view that the respondent should pay the appellant's costs of this appeal.

JUDGE3

Steven Kuswardana ("the appellant") is an Indonesian citizen. He came to Australia on 2 May, 1974. On 17 March, 1976 he was granted permission to remain in Australia indefinitely.

On 4 October, 1979 the appellant was convicted in the District Court at Sydney of the offence of indecent assault of a male. The victim was a seven year old boy. The appellant was remanded for sentence and subsequently sentenced to eighteen months' imprisonment. A non-parole period of nine months' was specified. The appellant served nine months in prison. He was released, on parole, on 18 July, 1980.

The offence of which the appellant was convicted occurred on 1 September, 1978. By that time, the appellant was well established in Australia. After being in regular employment in this country for a number of years, he was, in partnership, carrying on the business of a delicatessen/butcher's shop in the Sydney suburb of Waverley. He and his partner in the business were living in a flat above the shop. The appellant had, from his earnings in Australia, acquired a substantial equity in a one-bedroom home unit in the Sydney suburb of Randwick. He had invested, in Australia, some $8000 in a fixed bank deposit and various shares. He had a wide circle of friends and acquaintances in Australia. There were political considerations which militated against his return to Indonesia and it would seem that he intended to make Australia his permanent home. Ignoring, for the moment, the appellant's commission and conviction of the offence and the question of any statutory bar or impediment, these facts would tend to support the view that he had become established as a member of the Australian community.

On 4 June, 1980, while the appellant was still in prison, the Minister for Immigration and Ethnic Affairs ordered that he be deported from Australia. The deportation order recited the appellant's conviction and stated that the order was made in pursuance of the power conferred upon the Minister by s.13 of the Migration Act, 1958 ("the Act").

An application was made by the appellant to the Administrative Appeals Tribunal for a review of the decision of the Minister that he be deported. The application for review was heard by Gallop J., who affirmed the decision of the Minister. The appellant appeals to this Court from that decision of the Administrative Appeals Tribunal. The appeal is limited to an appeal on a question of law (Administrative Appeals Tribunal Act, 1975 s.44).

Section 13(a) of the Act provides, for present purposes, that where an immigrant has been convicted in Australia of an offence punishable by imprisonment for one year or longer, being an offence committed within five years after any entry by him into Australia, the Minister may order the deportation of the immigrant from Australia. The offence of which the appellant was convicted was punishable by imprisonment for one year or longer and was committed within five years after the appellant's entry into Australia. That being the case, the appellant was liable to deportation if he was, at the time the deportation order was made, an "immigrant" for the purposes of the section. Other provisions of s.13 render an immigrant liable to be deported in the event that he is convicted of an offence of a particular type committed within the period of five years after any entry into Australia (s.13(b)) or is, within that period, an inmate of a mental hospital or public charitable institution (s.13(c)).

The constitutional basis of the provisions of s.13 of the Act is to be found in s.51(xxvii) of the Commonwealth Constitution. That placitum confers upon the Commonwealth Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to immigration and emigration. Decisions of the High Court of Australia establish a number of relevant general propositions as to the scope of the legislative power with respect to immigration. Those propositions are:

(i) The legislative power is not confined to the control of entry. It extends to the control of the absorption of immigrants into the Australian community (The Queen v. Director-General of Social Welfare for Victoria; Ex parte Henry (1973) 133 C.L.R. 369 at pp. 373, 376, 381, 386; The Queen v. Forbes Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168 at p. 172; Koon Wing Lau v. Calwell (1949) 80 C.L.R. 533 at p. 560-561; O'Keefe v. Calwell (1949) 77 C.L.R. 261 at pp. 276-277);

(ii) The legislative power does not extend to the exclusion or deportation of a person who has become established as a member of the Australian community (see Koon Wing Lau v. Calwell, supra, at p. 589; The Queen v. Director-General of Social Welfare for Victoria; Ex parte Henry, supra, at p. 379). The concept of becoming established as a member of the Australian community is illustrated by a number of descriptive phrases that have been used in judgments in the High Court. Some of these phrases are: "persons who had made their home in Australia and become part of its people" (per Knox C.J., Ex parte Walsh and Johnson; In re Yates (1925) 37 C.L.R. 36 at p. 62); "a person whose permanent home is in Australia and who is therefore a member of the Australian community" (per Knox C.J., ibid, at p. 63); "a constituent member of the Australian community" (per Starke J., ibid, at p. 137); "those who belong to the Australian community" (per Dixon J., Koon Wing Lau v. Calwell, supra at p. 577), "a full member of the Australian community" (per Gibbs J., The Queen v. Director-General of Social Welfare for Victoria; Ex parte Henry, supra, at p. 373).

(iii) The legislative power to control the absorption of immigrants into the community includes:

(a) power to erect a legislative structure which permits entry on probation in the sense that the person is admitted to Australia subject to a legislative provision or condition that he is liable to be deported at any time during the probationary period either at complete discretion or for whatever reasons the Parliament may prescribe (King v. MacFarlane; Ex parte O'Flanagan and Ex parte O'Kelly (1923) 32 C.L.R. 518 at 533; Koon Wing Lau v. Calwell, supra, at p. 589. During such a probationary period, the person concerned will be incapable of establishing himself as a member of the Australian community and thereby removing himself from the reach of the immigration power. It is arguable that the length of any such probationary period must be reasonable (see Koon Wing Lau v. Calwell, supra, at p. 589).

(b) power to impose conditions upon absorption which, while they are unfulfilled, operate as a bar to absorption into the Australian community (Koon Wing Lau v. Calwell, supra, at p. 589; The Queen v. Director-General of Social Welfare for Victoria; Ex parte Henry, supra, at p. 373). It is arguable that any such conditions, or the bar to absorption which they represent, must be reasonable (Koon Wing Lau v. Calwell, supra, at p. 589).

Construing the provisions of s.13 consistently with the scope of the legislative power with respect to immigration conferred by s.51(xxvii) of the Constitution, it is apparent that the reference to an "immigrant" is not to be read as embracing everyone who may at any time have migrated to this country. The word does not include a person who, having migrated to Australia, has become established as a member of the Australian community. The ultimate finding that a person has become so established will be a finding of fact. Such a finding of fact will, however, only be open if the person in question has successfully passed through any valid probationary period which the Parliament has laid down as a prerequisite of assimilation and has satisfied any conditions preventing absorption into the Australian community to which the Parliament has validly subjected his entry.

Examination of the provisions of the Act discloses that the Parliament has established a probationary period of five years after entry. This appears not only from the provisions of s.13 of the Act. It appears even more clearly from the provisions of s.14(2) of the Act which provide, inter alia, that the Minister may, subject to the section, order the deportation of an immigrant who entered Australia not more than five years previously where his conduct (whether in Australia or elsewhere) has been such that he should not be allowed to remain in Australia. The effect of s.14(2) is that an immigrant remains liable to be deported, for unsatisfactory conduct, at any time within five years after entry. The five year period specified in s.14(2) will ordinarily correspond with the five years period referred to in s.13. During that period, an immigrant must remain an immigrant and is incapable of becoming established as a member of the Australian community.

In the present case, the appellant committed an offence of the type referred to in s.13(a) within the probationary period of five years. Commission of the offence did not, however, in itself render him liable to be deported under the provisions of s.13(a). The event specified by s.13(a) as rendering him liable to be deported was conviction of an offence of the relevant type committed within the probationary period. The conviction was after the five years had expired. It follows that the appellant was not liable to be deported pursuant to s.13(a) of the Act at any time during the probationary period. After the expiry of that period he was liable to be deported only if he was, upon his conviction, still an immigrant, that is to say, if he had not established himself as a member of the Australian community. The primary issue involved in the appeal is whether, under the legislative scheme contained in the Act, the mere fact that the appellant had committed an offence punishable by imprisonment for one year or more constituted, in itself, a statutory bar against his being absorbed into the Australian community and thereby shedding his status as an immigrant.

For the appellant, it is argued that the commission of the offence within the period of five years did not, without conviction within that period, necessarily constitute a bar to his assimilation at the end of the five year period. The probationary period having been survived without liability to be deported, it became, so the argument proceeded, a question of fact whether, in all the circumstances including the circumstance that he had committed a relevant offence, the appellant remained, at the time of his conviction, an immigrant for the purposes of s.13. That question of fact was, so it was said, plainly a threshold question which had been ignored both by the Minister and before the Tribunal. For his part, the respondent Minister did not deny that, if the commission of the offence did not in itself constitute a statutory bar to the appellant's assimilation, the question whether the appellant had ceased to be an immigrant was a necessary threshold question which had been ignored. The argument propounded, on the Minister's behalf, was that the commission of the offence within the period of five years constituted, for so long as conviction remained possible, an insurmountable impediment or bar to the appellant's becoming established as a member of the Australian community and, that being so, the question whether the appellant had shed his immigrant status was foreclosed against him. On this approach, to take an extreme example, larceny of a piece of fruit, if theoretically punishable by imprisonment for one year or more, would for so long as conviction remained possible (which could be for the balance of a lifetime) prevent the person concerned from establishing himself or herself as a member of the Australian community.

The argument advanced on behalf of the Minister has little to recommend it either as a matter of construction or as a matter of common sense. There is nothing in the provisions of s.13(a) or in its context in the Act which requires or warrants the conclusion that a long unsuspected or long forgotten offence should, for so long as prosecution remains theoretically possible, act as an unperceived but insurmountable bar to assimilation. There is little in common sense that recommends the approach that a person who has long been accepted as a member of the Australian community and who, indeed, may have become an Australian citizen, should, for the purposes of deportation under s.13(a), remain an immigrant while prosecution and conviction of a long past offence of the relevant type remains theoretically possible. It may be suggested that the above are extreme and unlikely examples of the effect of the construction of s.13(a) for which the respondent Minister contends. It was not, however, contested on his behalf that they are properly illustrative of that construction, namely, that the effect of s.13(a) is that commission of an offence punishable by imprisonment for one year or more involves the consequence that assimilation into the Australian community is precluded and a dormant power of deportation lies in wait unless and until conviction of the offence is no longer possible. Indeed, if the Minister's construction of s.13(a) were to be accepted, a question would arise as to whether such an open-ended preservation of immigrant status was within the legislative power conferred by s.51(xxvii) of the Constitution. That question does not arise, however, for the reason that, as I have indicated, I consider that that construction should be rejected.

It follows that, in my view, s.13(a) of the Act does not automatically preclude a person who has committed, but has not been convicted of, an offence of the relevant type, from becoming established as a member of the Australian community at the end of the probationary period of five years. The fact that a person has committed a criminal offence may well militate against his or her becoming so established: this would be particularly so if the offence involves a rejection of established local standards or aspirations as distinct from an isolated aberration. The fact that a person was on bail awaiting trial for a criminal offence may likewise militate against assimilation. The ultimate question whether, at the end of the probationary period, a person has become established as a member of the Australian community and has thereby shed his or her status as an immigrant, is, however, a question of fact to be determined in the light of all the relevant circumstances.

In the result, on the expiry of the probationary period of five years on 2 May, 1979, there was no insurmountable impediment or bar to the appellant's becoming established as a member of the Australian community. There was no insurmountable impediment or bar to his ceasing to be an "immigrant" for the purposes of s.13(a) of the Act. If by 4 June, 1980, when the respondent Minister purported to order, pursuant to s.13(a), that the appellant be deported from Australia, the appellant had become established as a member of the Australian community, the purported order, which was expressly made pursuant to s.13, was beyond the powers conferred upon the Minister by that section and was a nullity. In the situation where, absent any insurmountable impediment or bar, there were plainly facts supporting a conclusion that the appellant had been assimilated, the question whether the appellant had become established as a member of the Australian community lay at the threshold of any review of the order that the appellant be deported. It is, as has been mentioned, common ground that that threshold question was ignored.

The appellant's failure to raise, before the Administrative Appeals Tribunal, the question whether he was an immigrant for the purposes of s.13(a) of the Act, resulted no doubt, in the evidence before the Tribunal not being consciously directed towards that question. It also resulted in the Tribunal itself failing to consider it. I have been troubled as to whether the appellant's failure to raise the issue precludes the intervention of the Court at this stage. It was, however, not submitted on behalf of the Minister that the Court should decline to intervene on the ground that the issue was not raised before the Tribunal and, ultimately, I have come, for the reasons which they give, to agree with the conclusion of the other members of the Court that the order of the Tribunal should not be allowed to stand.

I agree with the orders proposed by the Chief Judge.